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March 26th, 2012 by
Robert Brandt |
1 Comment | Filed under
Garnishments

Did you just receive a garnishment summons? Wondering how you might be able to deal with a bank or wage garnishment without having to resort to filing for bankruptcy? Surprised that a bankruptcy lawyer is offering you advice about dealing with garnishments without filing for bankruptcy? Don’t be. I like my clients to be as informed as possible and to have all options on the table. Besides, “there is more than one way to skin a cat” (kind of a disgusting saying don’t you think?).

So, here it is. Here is one way that you can deal with a garnishment summons without bankruptcy. Notice I said “deal” with a garnishment, as opposed to necessarily “stop” a garnishment.

File a Homestead Deed- After the garnishment is already underway you will be served with the garnishment summons. Note that there will be no advance warning. You will either notice some bounced checks if it is a bank garnishment or you will get a call from HR if it is a wage garnishment. On the garnishment summons, in the upper right hand corner, will appear a hearing date and time, normally referred to as the “return date.” On a wage garnishment that date may be as far out as six months from the time the garnishment is issued by the court.

At that point you can prepare this relatively simple document called a homestead deed, take it to the land records of the county where the garnishment is pending, file it there and then, on the “return date” on your garnishment advise the judge that you have filed a homestead deed. Do that correctly, and you should be able to get back all the money that has been garnished so far and take out of your paycheck or that was sitting in you bank account.

So, what is the problem with using a homestead deed in Virginia to deal with a garnishment? Why have you not heard more about it? Well, for starters, unlike a bankruptcy, it does not actually stop a garnishment. To the contrary, the garnishment will be in place for months typically before you get before the judge and get your money back. Meanwhile you have to live with your bank account being frozen and checks bouncing or your wages being deducted. Can you go for six months while your paycheck is slashed by 25%?!

Second problem with the homestead deed is that it offers a “band aid approach” to treating a wound, or as a colleague of mine is fond of saying…it is just lazy lawyering. Why? Because in the great state of Virginia, the homestead deed, your “get out of jail card” can protect only up to $5,000 of cash or garnished funds during the entire course of your life time. Meaning, if $3,000 has been garnished from your wages during the past 6 months and you file a homestead deed and present it at the “return date” you may have won a battle, but you will lose the war. Why? Because all the creditor has to do is issue another wage garnishment the very next day and start the garnishment all over again. Eventually, that $5,000 protection that you get will be exhausted. Again, that’s 5K of protection for life. Those over the age of 65 or disabled veterans in fact get $10,000 over the course of their lifetime.

Finally, the last major disadvantage to using up your entire homestead deed is that eventually you will probably have no choice but to file for bankruptcy and some of your assets my now be exposed. Most folks need at least some of that $5,000 under the homestead deed when they file their bankruptcy case.

Having said all that, if you have waited until the day before your “return date” to address your garnishment, and if there is no time to file a bankruptcy, or you simply do not want to file for bankruptcy, a homestead deed may be just what the doctor ordered!

In my next blog article I will address the second method for dealing with a garnishment without filing for bankruptcy.

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